Citation Nr: 0522115
Decision Date: 08/15/05 Archive Date: 08/25/05
DOCKET NO. 05-04 685 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to an increased evaluation of bilateral flat
feet, currently evaluated as 30 percent disabling.
2. Entitlement to an increased evaluation of anxiety
reaction with depression and posttraumatic stress disorder
symptoms, currently evaluated as 30 percent disabling.
3. Entitlement to an increased evaluation of varicose veins
of the left leg, currently evaluated as 20 percent disabling.
4. Entitlement to a total disability evaluation based on
individual unemployability due to service-connected
disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Contreras, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1942 to
September 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2004 decision by the
Department of Veterans' Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida. The case comes to the Board from
the Newark, New Jersey RO.
Pursuant to an August 2005 motion and the Board's granting
thereof, this case has been advanced on the Board's docket
under 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. §
20.900(c) (2004).
FINDINGS OF FACT
1. The anxiety reaction with depression and posttraumatic
stress disorder symptoms is manifested by depressed mood,
anxiety, difficulty sleeping, irritability, and symptoms of
PTSD.
2. The bilateral flat feet disability is manifested by
moderate pes planus deformity, no corns or calluses, pain on
palpation, swelling, and difficulty walking.
3. The varicose veins of the left leg are manifested by pain
and edema in the foot and ankle, and dilated tortuous veins
in the medial aspect of the leg and the distal thigh area.
4. The appellant is service connected for anxiety reaction
with depression and posttraumatic stress disorder symptoms,
evaluated as 30 percent disabling; bilateral flat feet,
evaluated as 30 percent disabling; varicose veins of the left
leg, evaluated as 20 percent disabling; and sinusitis,
evaluated as noncompensably disabling. A combined disability
evaluation of 60 percent is in effect. These evaluations do
not meet the schedular requirements for assignment of a total
disability rating based on individual unemployability.
5. Appellant last worked in June 1974. He worked over 20
years for a car dealership and has reported completing 3
years of high school.
6. The appellant's only service-connected disabilities have
not been shown to be of such severity as to preclude
substantially gainful employment.
CONCLUSION OF LAW
1. The criteria for a rating in excess of 30 percent for
bilateral flat feet have not been met. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2004).
2. The criteria for a rating in excess of 30 percent for
anxiety reaction with depression and posttraumatic stress
disorder symptoms have not been met. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9400 (2004).
3. The criteria for a rating in excess of 20 percent for
varicose veins of the left leg have not been met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic
Code 7120 (2004).
4. The criteria for assignment of a total disability rating
based on individual unemployability are not met, and there is
no evidence to warrant referral for consideration of
individual unemployability on an extra-schedular basis. 38
C.F.R. §§ 3.340, 4.16(a) and (b) (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in
part at 38 C.F.R. § 3.159, amended VA's duties to notify and
to assist a claimant in developing the information and
evidence necessary to substantiate a claim.
Under 38 U.S.C.A. § 5103, VA must notify the claimant of the
information and evidence not of record that is necessary to
substantiate a claim, which information and evidence that VA
will seek to provide and which information and evidence the
claimant is expected to provide. Under 38 C.F.R. § 3.159(b),
the notification must include the request that the claimant
provide any evidence in the claimant's possession that
pertains to a claim.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court
held, in part, that VCAA notice, as required by 38 U.S.C.
§ 5103(a), must be provided to a claimant before the initial
unfavorable adjudication by the RO.
In this case, the RO provided the pre-adjudicatory VCAA
notice by letter, dated in October 2003. The notice included
the type of evidence needed to substantiate the claim of
entitlement to increased evaluation for bilateral flat feet,
anxiety disorder, and varicose veins, and entitlement to
service connection for TDIU, namely: medical evidence that
shows that the veteran qualifies for an unemployability
rating, and medical evidence that shows the veteran's
service-connected disabilities increased in severity. The
appellant was informed that VA would obtain service records,
VA records and records from other Federal agencies, and that
he could submit private medical records or authorization VA
to obtain the records on his behalf. He was given a year to
respond. The veteran was also provided with a VCAA notice by
letter in May 2005.
As for the timing of the § 3.159 notice that followed the
initial adjudication, the timing did not prejudice the case
because after the notice the appellant had a meaningful
opportunity to participate effectively in the processing of
his claim as he had the opportunity to submit additional
argument and evidence, and he did submit additional argument
and evidence.
As for content of the VCAA notice, it substantially complies
with the specificity requirements of Quartuccio v. Principi,
16 Vet. App. 183 (2002) (identifying evidence to substantiate
the claim and the relative duties of VA and the claimant to
obtain evidence), and of Charles v. Principi, 16 Vet. App.
370 (2002) (identifying the document that satisfies VCAA
notice).
As for the deciding the claim before the expiration of the
one-year period to submit evidence, 38 U.S.C.A. § 5103(b)(3)
(West 2002 & Supp. 2004) authorizes VA to make a decision on
a claim before the expiration of the one-year period provided
a claimant to respond to VA's request for information or
evidence, superseding the decision of the United States Court
of Appeals for the Federal Circuit in Paralyzed Veterans of
America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed.
Cir. 2003), invalidating a regulatory provision, implementing
the VCAA, that required a response to VCAA, as here, in less
than the statutory one-year period.
For these reasons, no further action is needed to ensure
compliance with the duty to notify under the VCAA.
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate a claim. As there is no additional evidence to
obtain, the Board concludes that the duty-to-assist
provisions of the VCAA have been complied with.
Factual Background
Historically, in a May 1946 decision, the RO granted the
veteran service connection for bilateral pes planus, at a
noncompensable rating. In an August 1946 RO decision, the
veteran's evaluation for bilateral pes planus was increased
to 10 percent, and he was granted service connection for
sinusitis. In an April 1947 RO decision, the veteran was
granted service connection at a 30 percent rating for
psychoneurosis, anxiety state, and service connection was
granted for varicose veins of the left leg at a 0 percent
rating. In an April 1949 RO decision, the veteran's
evaluation for sinusitis was decreased to 0 percent. In an
August 1951 RO decision, the veteran's evaluation for anxiety
reaction was decreased to 10 percent, and his evaluation for
bilateral pes planus was decreased to 0 percent. In the May
1975 rating decision, the veteran's evaluation for anxiety
reaction was increased to 30 percent. In the February 1979
RO decision, the veteran's evaluation for bilateral pes
planus was increased to 10 percent, and his evaluation for
left leg varicose veins were raised to 20 percent.
The veteran filed the current claim in August 2003.
VA treatment records from November 1998 through May 2003 show
that the veteran was treated for various non-service
connected disabilities.
A July 2003 VA mental health consult indicates that the
veteran reported being depressed. On examination, the
veteran's mood was depressed and anxious, and his affect was
at times labile. Sleep was difficult, he had a lousy
appetite, had trouble enjoying things, was irritable and
angered too easily, was apathetic, and worried excessively.
The examiner noted that the veteran had symptoms of PTSD.
The diagnosis was major depression, moderate, also PTSD.
VA treatment records from July 2003 to September 2003 show
that the veteran was treated for depression.
The November 2003 VA psychiatric examination indicates that
the veteran's file was not reviewed. The veteran reported
that he saw his buddies getting killed and blown up, he saw
dead bodies, and he saw a lot of action. He reported having
nightmares and bad dreams, hypervigilance, and would startle
at loud noises. He stated that his symptoms would come and
go, he'd had them for many years, and they were moderate in
nature. On examination, the veteran had an anxious mood, an
appropriate affect, normal speech, no perceptual problems.
Thought processes and thought content were normal. There was
no suicidal or homicidal ideation. The veteran was oriented
to person, place, and time. Insight and judgment were fair.
Impulse control was fair. The veteran denied any recent
stressful life events. He stated that he spent his time
watching TV and being with his family. He was retired. The
examiner stated that the veteran was an 82-year-old married
man with symptoms of PTSD. He had a productive work history
and a supportive social network. The diagnosis was PTSD,
with a GAF of 55, and moderate symptoms. The examiner stated
that the veteran's psychiatric problems did not prevent him
from getting employment.
The November 2003 VA podiatry examination indicates that the
veteran complained of pain and swelling in the instep of his
left foot, and pain in his right foot. He described the pain
as an aching pain, all the time, sitting, standing, and at
rest. He stated that he had not had supports made for his
feet, and he wore compression stockings, but did not have
them on currently. He stated that in the past his podiatrist
taped his arch, but he never used an insert. The veteran
walked with a walker, and did not ambulate long distances.
On examination, the dorsalis pedis was +1/4 and faint. The
posterior tibial pulse was also faint +1/4 bilaterally.
Capillary filling time was three seconds for all ten toes.
There was non-pitting edema that was noted on the legs and
feet. There were hammertoe deformities on toes two through
five, with rigid hammertoes on the second and third toes,
bilaterally. There were no corns or calluses on the feet.
Sub-patellar joint inversion was 10 degrees, and eversion was
5 degrees (out of 10) and limited. There was popping on the
right ankle due to dorsiflexion, and there was less than 10
degrees of dorsiflexion on the right or left ankle. Painful
arches were noted on palpation. The veteran was unable to
stand without his shoes, so no stance or gait evaluations
without his shoes were obtained during the exam. There was
some weakness in the left leg, and the veteran needed
assistance in standing from a sitting position. The veteran
was unable to stand for any long periods of time. The
veteran stated that he retired in 1974 due to disability of
the leg. He stated that he could not stand for any long
period of time.
The diagnosis was moderate pes planus deformity, bilaterally;
and plantar fasciitis, secondary to the pes planus deformity.
The examiner stated that the veteran's service connected
disability of pes planus deformity was limited due to the
pain on the veteran's foot. The veteran had a functional
limitation of the range of motion of the subtalar joint, and
at the ankle joint, the veteran did not have adequate
dorsiflexion. The veteran's position of his feet affected
gait, primarily in standing and walking. The examiner noted
that that would have an affect on any type of physical
employment. The examiner noted that in terms of sedentary
employment, the veteran could sit and do a job. It was noted
that the veteran had pain regardless of weight bearing or
non-weight bearing, which was also associated with some
arthritic conditions.
The November 2003 VA general medical examination indicates
that the veteran stopped working in 1974 due to an injury to
his lower back while he was pushing a car. The injury
consisted of a herniated lower spine disc. He stated that he
was diagnosed with varicose veins while he was in the Army,
and the varicose veins were operated on the left side of the
groin area while he was in the service. He reported that he
had difficulty in walking due to pain in the calf, feet, and
ankle area, and his legs would swell. He denied a history of
any sores on the foot or fungal infections of the skin on the
foot or nails. He stated that sometimes he would wear
support stockings. On examination, the veteran walked with a
walker for short distances, and used a wheelchair for long
distances. He had a wobbly gait. He had 2+ pedal and ankle
edema, and dilated tortuous veins noted over the medial
aspect of both legs and the distal thigh area on both sides.
Pedal pulses were present. The skin was dry and scaly.
There was no evidence of tinea corporis. Neurologically, the
veteran was not that steady when walking, he had a wobbly
gait.
The diagnoses were varicose veins bilaterally, status post
surgery on the left by history; diabetes mellitus type 2 on
diet control; essential hypertension, under good control;
gout; benign prostatic hypertrophy; and status post cervical
spinal surgery for disc herniation, by history. The examiner
stated that in reference to the service-connected condition
of varicose veins, the veteran was employable, but in
reference to non-service connected conditions of diabetes,
hypertension, gout, hyperlipidemia, and with advancing age
and unsteady gait, the veteran was not able to do any
physical strenuous activity, but could possibly do a
sedentary desk job.
A letter from a private neurologist, dated May 2004,
indicates that the physician first saw the veteran in October
1999, and had treated the veteran for spinal cord compression
due to severe cervical spondylosis and herniated discs,
cervical spine surgery, and subsequent rehabilitation. It
was noted that the veteran was totally and permanently
disabled by reason of the above lesions, which produced
inability to walk independently, use his hands usefully, move
his right shoulder, and empty his urinary bladder. The
physician noted that the veteran had not been employable in
any capacity since he first started to treat him in October
1999.
A letter from a private physician, dated May 2004, indicates
that the veteran was being treated for hypertension,
multilevel spondylosis, and cervical radiculopathy. Despite
having surgery, the veteran still had severe weakness in both
legs and arms. The physician noted that the veteran was
disabled and unable to work.
A letter from a private podiatrist, dated June 2004,
indicates that the veteran had been seen for podiatric care
for the past 12 years. It was noted that recently the
veteran had been seen for progressive weakness in his legs,
and the inability to walk without assistance. The veteran
had undergone back surgery for that problem, with limited
success. It was noted that the veteran was currently
extremely limited in his ability to ambulate, and had to use
a walker due to his leg weakness and instability. He
suffered from chronic lower extremity edema and some degree
of arteriovascular disease. Recent foot X-rays revealed a
bilateral pes planus deformity, and considerably advanced
hypertrophic arthritis. The physician stated that the
veteran was disabled and unable to work in any reasonable
capacity.
In a statement received by the RO in August 2004, the
veteran's wife stated that the veteran went to private
internists, who gave him tranquilizers, but those doctors had
retired or passed away. She stated that the veteran had
recently been seeing VA physicians who had been helping him
deal with his emotions and uncontrollable reactions to
stressful situations, including hysterical crying. She
stated that when the veteran worked, he was fortunate to find
men who were veterans who were sympathetic to his behavior,
and gave him a lot of leeway and understanding about his
depression. She indicated that his flat feet and varicose
veins always gave him a lot of pain and difficulty walking,
and the pain caused him to have many sleepless nights. She
stated that when he went for his compensation and pension
examination, he did not wear his support stockings because
they take a lot of time to put on and take off. She reported
that certain smells caused the veteran to remember the smell
of burnt bodies of men that crashed onto the fields during
his service.
In a January 2005 rating decision, the veteran's evaluation
for bilateral flat feet was increased to 30 percent
disabling.
Analysis
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4.
When a question arises as to which of two ratings apply under
a particular diagnostic code, the higher evaluation is
assigned if the disability more closely approximates the
criteria for the higher rating; otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7. After careful
consideration of the evidence, any reasonable doubt remaining
is resolved in favor of the veteran. 38 C.F.R. § 4.3. The
veteran's entire history is reviewed when making disability
evaluations. 38 C.F.R. § 4.1.
The veteran's statements regarding the severity of his
disability are deemed competent with regard to the
description of symptoms. Espiritu v. Derwinski, 2 Vet. App.
492 (1992). However, these statements must be considered
with the clinical evidence in conjunction with the
appropriate rating criteria.
In cases where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, as here, it is the present level of disability that is
of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58
(1994).
I. Entitlement to an increased evaluation of bilateral flat
feet, currently evaluated as 30 percent disabling.
The RO has assigned a 30 percent rating for bilateral flat
feet, pursuant to the criteria set forth in the Schedule for
Rating Disabilities under Diagnostic Code 5276.
Pursuant to Diagnostic Code 5276, a 30 percent evaluation is
warranted for severe bilateral pes planus (flat feet), with
objective evidence of marked deformity (pronation, abduction,
etc.), pain on manipulation and use accentuated, an
indication of swelling on use, and characteristic
callosities. A 50 percent evaluation is warranted for
pronounced bilateral pes planus, manifested by marked
pronation, extreme tenderness of plantar surfaces of the
feet, marked inward displacement and severe spasm of the
tendo Achilles on manipulation, not improved by orthopedic
shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code
5276.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2004).
At the November 2003 VA examination, the veteran stated that
he wore compression stockings, but did not use supports or
inserts for his feet. He walked with a walker, and did not
ambulate long distances. He complained of swelling and pain
in his feet. On examination, the arches were painful on
palpation. There were no corns or calluses on the feet. The
diagnosis was moderate pes planus deformity, bilaterally, and
plantar fasciitis, secondary to the pes planus deformity.
The examiner stated that the veteran had functional
limitation of the range of motion of the subtalar joint, and
at the ankle joint, the veteran did not have adequate
dorsiflexion. Statements from the veteran's private
physicians indicate that the veteran's inability to walk was
mainly caused by his spinal cord disability, herniated discs,
and arthritis. A June 2004 private physician statement
stated that recent X-rays revealed a bilateral pes planus
deformity.
The Board finds that the veteran's bilateral flat foot
disability does not warrant a rating in excess of 30 percent.
The medical evidence does not show marked inward displacement
of the feet, severe spasm of the tendo achillis, nor the use
of orthopedic shoes or appliances, nor any of the other
symptoms that would meet the criteria for a 50 percent
rating. In regard to functional loss due to pain and other
factors, the Board notes that at least some of the veteran's
pain and other symptoms are attributable to his spinal cord
disability and herniated discs, for which service connection
has not been granted. Symptoms attributable to nonservice-
connected disabilities generally may not be considered in
evaluating the service-connected disability under
consideration. See 38 C.F.R. § 4.14. The Board finds that
the veteran's symptoms of pain and swelling in the feet and
difficulty walking are indicative of the criteria for a 30
percent rating. Therefore, after reviewing the record, it is
the judgment of the Board that the criteria for a rating in
excess of 30 percent for bilateral flat feet have not been
met. As the preponderance of the evidence is against the
claim, the benefit-of-the-doubt doctrine does not apply, and
an increased rating must be denied. 38 U.S.C.A. § 5107(b)
(West 1991); Gilbert v. Derwinski, 1 Vet. App 49, 55-57
(1990).
II. Entitlement to an increased evaluation of anxiety
reaction with depression and posttraumatic stress disorder
symptoms, currently evaluated as 30 percent disabling.
The RO has assigned a 30 percent rating for anxiety reaction
with depression and posttraumatic stress disorder symptoms
under Diagnostic Code 9400, the rating code for generalized
anxiety disorder. The Board notes that under the rating
criteria pertaining to psychiatric disabilities, the
disability of generalized anxiety disorder (Diagnostic Code
9400) is rated under the General Rating Formula for
psychiatric disorders.
Under the criteria for rating psychiatric disorders, a 30
percent rating is assigned when there is occupational and
social impairment with occasional decrease in work efficiency
and intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, mild memory loss (such as forgetting names,
directions, recent events). 38 C.F.R. § 4.130, Diagnostic
Code 9400.
A 50 percent rating is assigned when there is occupational
and social impairment with reduced reliability and
productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short-and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships. Id.
A 70 percent evaluation is demonstrated by occupational and
social impairment with deficiencies in most areas, such as
work, school, family relationships, judgment, thinking or
mood, due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting ability to function
independently, appropriately and effectively; impaired
impulse control (such as unprovoked irritability with periods
of violence); spatial disorientation; neglect of personal
appearance and hygiene; difficulty in adapting to stressful
circumstances (including work or a work-like setting); and
inability to establish and maintain effective relationships.
Id.
A 100 percent evaluation is warranted for total occupational
and social impairment, due to such symptoms as: gross
impairment in thought processes or communication; persistent
delusions; grossly inappropriate behavior; persistent danger
of hurting self or others; intermittent ability to perform
activities of daily living (including maintenance of minimal
personal hygiene); disorientation to time or place; and
memory loss for names of closes relatives, own occupation, or
own name. Id.
The Global Assessment of Function (GAF) is a scale reflecting
the "psychological, social, and occupational functioning on
a hypothetical continuum of mental health-illness." Quick
Reference to the Diagnostic Criteria from the Diagnostic and
Statistical Manual of Mental Disorders, 46-47 (4th ed. 1994)
(DSM-IV). A GAF score of 51-60 is defined as moderate
symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).
The regulations pertinent to rating mental disorders also
provide, under 38 C.F.R. § 4.125 (b) (2004), that if the
diagnosis of a mental disorder is changed, the rating agency
must determine whether the new diagnosis represents a
progression of the prior diagnosis, correction of an error in
the prior diagnosis, or development of a new and separate
condition. In this case, the veteran was initially granted
service connection for anxiety neurosis in April 1947, and in
November 2003 the diagnosis was modified to anxiety reaction
with depression and posttraumatic stress disorder symptoms.
VA treatment records from July 2003 to September 2003 show
that the veteran was treated for depression, and at the
November 2003 VA examination, the examiner stated that the
veteran had symptoms of PTSD. There is no evidence to
suggest that the veteran's new diagnosis of anxiety reaction
with depression and posttraumatic stress disorder symptoms is
in any manner a new and separate condition.
After careful review of the record in light of the above-
cited criteria, the Board finds that a rating in excess of 30
percent for anxiety reaction with depression and
posttraumatic stress disorder symptoms is not warranted.
There is no medical evidence that shows that the veteran has
panic attacks more than once a week, difficulty in
understanding complex commands, impairment of short- or long-
term memory, impaired judgment, or impaired abstract
thinking. Additionally, in the past, the veteran had a
productive work history, and currently had a supportive
social network. The examiner at the November 2003 VA
examination stated that the veteran's psychiatric problems
would not prevent him from getting employment. The Board
finds that the veteran's symptoms of nightmares, propensity
to startle, irritability, anxiety, and depressed mood are
indicative of the criteria for a 30 percent rating. In the
absence of symptoms meeting the criteria for a 50 percent
rating, the current symptoms attributed to anxiety reaction
with depression and posttraumatic stress disorder symptoms do
not more nearly approximate or equate to the criteria for a
50 percent rating. The Board notes that no VA examiner has
concluded that the veteran's level of occupational and social
impairment due to the anxiety reaction with depression and
posttraumatic stress disorder symptoms is more than moderate
in degree, as evidenced by the GAF score of 55 in November
2003.
Taking into account all the evidence and for the above
reasons, the Board finds that the preponderance of the
evidence is against the claim for a rating higher than 30
percent for anxiety reaction with depression and
posttraumatic stress disorder symptoms, and an increased
rating must be denied. 38 U.S.C.A. § 5107(b) (West 1991);
Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990).
III. Entitlement to an increased evaluation of varicose
veins of the left leg, currently evaluated as 20 percent
disabling.
The RO has assigned a 20 percent rating for varicose veins of
the left lower extremity in accordance with the criteria set
forth in VA's Schedule for Rating Disabilities, 38 C.F.R. §
4.104, Diagnostic Code 7120 (2004).
Diagnostic Code 7120 provides for the evaluation of varicose
veins. A 20 percent rating is warranted for persistent
edema, incompletely relieved by elevation of an extremity,
with or without beginning stasis pigmentation or eczema. A
40 percent rating is warranted for persistent edema and
stasis pigmentation or eczema, with or without intermittent
ulceration. A 60 percent rating is warranted for persistent
edema or subcutaneous induration, stasis pigmentation or
eczema, and persistent ulceration. A 100 percent rating is
warranted for massive, board-like edema with constant pain at
rest.
The November 2003 VA examination indicates that the veteran
had swelling of the legs. He denied a history of any sores
on the feet, and stated that he would sometimes wear support
stockings. He had 2+ pedal and ankle edema, and dilated
tortuous veins over the medial aspect of the leg and the
distal thigh area on both sides. The skin was dry and scaly,
and there was no evidence of tinea corporis. The diagnosis
was varicose veins bilaterally, status post surgery on the
left by history. The Board notes that the veteran is only
service connected for varicose veins of the left leg. While
the medical evidence shows edema of the left foot and ankle,
the evidence does not show stasis pigmentation or eczema of
the skin. After reviewing the record, it is the judgment of
the Board that the criteria for a rating in excess for the
varicose veins of the left leg have not been met. As the
preponderance of the evidence is against the claim, the
benefit-of-the-doubt doctrine does not apply, and an
increased rating must be denied. 38 U.S.C.A. § 5107(b) (West
1991); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990).
IV. Entitlement to a total disability evaluation based on
individual unemployability due to service-connected
disabilities (TDIU).
Total disability will be considered to exist where there is
present any impairment of mind and body that is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation. 38 C.F.R. § 3.340. To
qualify for a total rating for compensation purposes, the
evidence must show (1) a single disability rated as 100
percent disabling; or (2) that the veteran is unable to
secure or follow a substantially gainful occupation as a
result of his service-connected disabilities and there is one
disability ratable at 60 percent or more, or, if more than
one disability, at least one disability ratable at 40 percent
or more and a combined disability rating of 70 percent. See
38 C.F.R. § 4.16.
The Court has stated:
In determining whether appellant is entitled
to a total disability rating based upon
individual unemployability, neither
appellant's non-service-connected
disabilities nor his advancing age may be
considered. See 38 C.F.R. § 3.341(a)
(1992); Hersey v. Derwinski, 2 Vet. App. 91,
94 (1992). The Board's task was to
determine whether there are circumstances in
this case apart from the non-service-
connected conditions and advancing age which
would justify a total disability rating
based on unemployability. In other words,
the BVA must determine if there are
circumstances, apart from non-service-
connected disabilities, that place this
veteran in a different position than other
veterans with an 80 [percent] combined
disability rating. See 38 C.F.R. § 4.16(a)
(1992).
Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995).
The central inquiry is, "whether the veteran's service-
connected disabilities alone are of sufficient severity to
produce unemployability." Hatlestad v. Brown, 5 Vet. App.
524, 529 (1993). Neither nonservice-connected disabilities
nor advancing age may be considered in the determination. 38
C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361,
363 (1993).
The appellant is currently rated at 30 percent for bilateral
flat feet, 30 percent for anxiety reaction with depression
and PTSD symptoms, and 20 percent for varicose veins of the
left leg, for a combined rating of 60 percent disabling.
Because the veteran does not have one service-connected
disability that is rated more than 40 percent or more, and
the combined rating has never been greater than 60 percent,
he does not meet the minimum schedular criteria for a TDIU.
He reportedly has completed 3 years of high school and last
worked at an auto dealership. He had worked there for over
20 years.
However, it is the established policy of VA that all veterans
who are unable to secure and follow a substantially gainful
occupation by reason of service-connected disabilities shall
be rated totally disabled. 38 C.F.R. § 4.16(b). Rating
boards should refer to the Director of the Compensation and
Pension Service for extra-schedular consideration all cases
of veterans who are unemployable by reason of service-
connected disabilities but who fail to meet the percentage
requirements set forth in 38 C.F.R. § 4.16(a). The veteran's
service-connected disabilities, employment history,
educational and vocational attainment, and all other factors
having a bearing on the issue must be addressed. 38 C.F.R. §
4.16(b). The rating board did not refer this case for extra-
schedular consideration.
The Board concludes the appellant is not unemployable due to
his service-connected disabilities. The November 2003 VA
psychiatric, podiatry and general medical examination reports
all indicated that the veteran's service-connected
disabilities would not prevent him from getting employment,
in particular a sedentary desk job. However, the Board notes
that the veteran is severely limited due to his physical
condition as a whole, specifically by the non-service
connected disabilities related to his spinal cord and
herniated discs.
The Board has also considered whether the case should be
referred to the Director of the VA Compensation and Pension
Service for extra-schedular consideration, but concludes that
this case presents no unusual or exceptional circumstances
that would justify a referral of the total rating claim to
the Director of the VA Compensation and Pension Service for
extra-schedular consideration. There is no evidence of
anything out of the ordinary, or not average, in the
appellant's situation. The appellant's service-connected
conditions do affect his abilities to some degree, but there
is no evidence that he is unable to perform a desk job, or
some other type of substantially gainful employment as a
result of these conditions. No medical professional has
stated that the veteran's service-connected disabilities are
wholly the reason for the veteran's inability to work. It
has been reported that he stopped working in the car
dealership after injuring his back when pushing a car. This
is non-service-connected pathology. In this case, the
preponderance of the evidence is against finding that the
appellant's service-connected disabilities alone make him
unemployable.
There is no evidence of unusual or exceptional circumstances
to warrant referral for extra-schedular consideration of a
total disability rating based on the appellant's service-
connected disorders. Again, no medical professional has ever
indicated that the appellant's service-connected disorders
alone have rendered him unemployable, and as stated above,
neither nonservice-connected disabilities nor advancing age
may be considered in the determination. 38 C.F.R. §§ 3.341,
4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
Accordingly, in the absence of any evidence of unusual or
exceptional circumstances beyond what is contemplated by the
assigned schedular disability evaluations, the preponderance
of the evidence is against the appellant's claim that he is
precluded from securing substantially gainful employment
solely by reason of his service-connected disorders or that
he is incapable of performing the mental and physical acts
required by employment due solely to his service-connected
disorders. The Board concludes, therefore, that a total
disability rating for compensation purposes based on
individual unemployability is not warranted. In reaching
this conclusion, the Board has considered the benefit-of-the-
doubt doctrine. However, as the preponderance of the
evidence is against the appellant's claim, that doctrine is
not applicable. See 38 U.S.C.A. 5107(b); Gilbert, supra.
Though the Board cannot grant the veteran's claim for a total
disability evaluation based on individual unemployability due
to service-connected disabilities, the Board advises the
veteran that he should file a claim for entitlement to a
permanent and total disability rating for pension purposes.
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to an increased evaluation of bilateral flat feet
is denied.
Entitlement to an increased evaluation of anxiety reaction
with depression and posttraumatic stress disorder symptoms is
denied.
Entitlement to an increased evaluation of varicose veins of
the left leg is denied.
Entitlement to a total disability evaluation based on
individual unemployability due to service-connected
disabilities is denied.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs